Illegal Balcony Search Could Alter Police Policies

OCEAN CITY — In what could turn out to be a test case of sorts for future searches and arrests in the resort, a Maryland appeals court this week agreed an Ocean City Police Department (OCPD) officer violated a defendant’s Fourth Amendment right to privacy when he climbed the stairs to a second-story balcony after smelling the odor of marijuana.

Around 3:15 a.m. on June 29, 2009, an officer on bicycle patrol in the downtown area smelled the odor of burnt marijuana coming from an unidentified source. The officer circled around the area before noticing two individuals, including Carrie McGurk, then 29, of Burtonsville, Md., and a male companion, sitting on a second-story balcony.

The officer then parked his bike, walked up a flight of stairs on the side of the apartment building on Philadelphia Ave. near 6th Street and entered the balcony. After questioning, the male suspect admitted throwing a marijuana cigarette from the balcony into the yard below and was taken into custody. McGurk was then questioned and searched twice, which resulted in the discovery of a Baggie of marijuana in her purse along with three rocks of crack cocaine on her person, concealed under her bathing suit top, along with a large amount of cash.

McGurk was arrested and charged with possession and possession with intent to distribute. Prior to her trial, McGurk filed a motion to suppress the evidence found on her person, contending the search was illegal because the officer had entered the balcony without a warrant in violation of the Fourth Amendment.

The motion to suppress was denied and McGurk entered a plea of not guilty-agreement with the statement of facts on a possession with intent to distribute crack cocaine charge. She was sentenced to three years in jail, all of which was suspended in favor of probation.

McGurk then appealed the conviction, citing the officer’s entry onto the balcony uninvited and without cause was in violation of her Fourth Amendment rights.

The state’s Court of Special Appeals heard the case and this week filed an opinion agreeing with the defendant. As a result, McGurk’s 2009 conviction has been overturned and the case has been remanded back to the Worcester County Circuit Court for a new trial.

At the heart of the appeal is the notion the OCPD bike officer, upon smelling the odor of marijuana from the street, inferred the source was the two people he saw on the second-floor balcony. More importantly, once the officer suspected McGurk and her companion as the source, did he have the right to walk up the stairs and enter the balcony uninvited and without a warrant.

“The most important issue raised is whether the police officers, who entered onto the second story balcony, physically intruded into a ‘constitutionally protected area,’ for example an area in which Ms. McGurk had a reasonable expectation of privacy,” the opinion reads. “The issue is important because if the intrusion was into a constitutionally protected area, all the evidence seized by police incident to the arrest should have been suppressed based on the ‘fruits of the poisonous tree’ doctrine.”

The balcony was, by definition, attached to the apartment building, and as such was afforded the same privacy protections as a living room with an open door, for example. It was on the second-floor and surrounded by a high railing with flower boxes protecting it from view from the street along with furniture suggesting it was used as another room in the residence. According to the opinion, the balcony met the standard of curtilage.

“An area is considered part of the curtilage of a dwelling house if it ‘is so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection’,” the opinion reads.

However, the state defended the search using three basic arguments: McGurk never had standing to argue that she was in a constitutionally protected area; even assuming McGurk had standing, the second-floor balcony was not a part of the curtilage of the residence; and even if the second-floor balcony was part of the curtilage, entry by Ocean City police was still lawful based on exigent circumstances.

However, the Court of Appeals disagreed, opining the officer’s entry to the balcony was warrantless and unconstitutional.

“Certainly, an occupant of the balcony at issue would not expect an uninvited stranger to climb the steps and enter onto the balcony in the middle of the night,” the opinion reads. “The balcony was in no sense a public place. Thus, we hold that the balcony leading to the second story was part of the curtilage of the home, and that the appellant, while on that balcony, had a subjective expectation of privacy.”

The state argued the male defendant’s admission of tossing the marijuana roach from the balcony and the later discovery of the roach on the ground below validated the entry onto the balcony. However, the appeals court ruled that turn of events occurred after the officer had climbed to stairs to the balcony and anything that happened after that constituted an illegal search. Essentially, the high court ruled the officer could not have known what McGurk and her male companion were up to prior to entering the balcony.

“Therefore, he could not possibly have believed that exigent circumstances permitted his entry,” the opinion reads. “Quite obviously, an entry into a constitutionally protected area cannot be justified based on exigent circumstances unknown to the police.”

According to the facts established at the suppression hearing, after the officer smelled the odor of marijuana in the area, he turned around and peddled roughly 60 feet north in an attempt to locate the source, then turned back to the south before he saw two people sitting on the balcony. He then asked for the assistance of other officers to help him locate the source.

“The officer admitted that he did not know that the marijuana odor was coming from the balcony until after he walked up the steps,” the opinion reads. “He, therefore, did not have probable cause to believe the occupants of the balcony had committed a crime at the time he entered onto the balcony.”

For those reasons, the Court of Special Appeals vacated McGurk’s conviction and remanded the case back to Circuit Court for a new trial, ostensibly without the evidence collected from the scene.

“We hold that the motion to suppress should have been granted as to all evidence seized from the appellant’s purse or person because the officer’s warrantless entry was unreasonable and violated the Fourth Amendment, and all evidence seized from the appellant’s purse or person were taken as a result of the warrantless entry onto the balcony,” the opinion reads.

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